Citation Nr: 0940443
Decision Date: 10/26/09 Archive Date: 11/04/09
DOCKET NO. 06-30 158 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Louisville,
Kentucky
THE ISSUE
Entitlement to an increased evaluation for bilateral hearing
loss pursuant to the provisions of 38 U.S.C.A. § 1160,
currently evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
S. Patel, Associate Counsel
INTRODUCTION
The Veteran served on active duty from December 1977 to
November 1984.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a December 2003 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Huntington, West Virginia. The matter has since been
transferred to the RO in Louisville, Kentucky.
The Board notes that the Veteran did not specifically file a
claim for an increased rating for hearing loss. Rather, in
the December 2003 rating decision on appeal, the RO sua
sponte increased the Veteran's disability evaluation for
service-connected right ear hearing loss to 10 percent based
on the evidence of record effective from September 18, 2003.
The Veteran then filed a timely appeal of that decision. See
November 2004 notice of disagreement; September 2006 Appeal
to the Board of Veterans' Appeals. In an August 2007 rating
decision, the RO granted compensation for bilateral hearing
loss under 38 U.S.C.A. § 1160 with a 10 percent evaluation,
effective January 31, 2007.
On his VA Form 9, the Veteran requested a Travel Board
hearing. However, he subsequently withdrew that request in
correspondence dated December 2006. Therefore, the Board may
proceed.
FINDING OF FACT
At worst, the medical evidence of record indicates that the
Veteran manifests Level II hearing in the nonservice-
connected left ear, and Level XI hearing in the service-
connected right ear.
CONCLUSION OF LAW
The criteria for a rating in excess of 10 percent pursuant to
the provisions of 38 U.S.C.A. § 1160 for bilateral hearing
loss have not been met. 38 U.S.C.A. §§ 1155, 5013A, 5107
(West 2002); 38 C.F.R. §§ 3.102, 4.85, 4.86 Diagnostic Code
6100 (2008).
REASONS AND BASES FOR FINDING AND CONCLUSION
Under the Veterans Claims Assistance Act (VCAA), when VA
receives a complete or substantially complete application for
benefits, it must notify the claimant of the information and
evidence not of record that is necessary to substantiate a
claim, which information and evidence VA will obtain, and
which information and evidence the claimant is expected to
provide. 38 C.F.R. § 3.159 (2008). Such notice must include
notice that a disability rating and an effective date for the
award of benefits will be assigned if there is a favorable
disposition of the claim. Dingess/Hartman v. Nicholson, 19
Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A,
5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v.
Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II).
The Board notes that effective May 30, 2008, VA amended its
regulations governing VA's duty to provide notice to a
claimant regarding the information necessary to substantiate
a claim. The new version of 38 C.F.R. § 3.159(b)(1), removes
the portion of the regulation which states that VA will
request that the claimant provide any evidence in his
possession that pertains to the claim. See 73 Fed. Reg.
23353-54 (April 30, 2008).
As noted above, the Veteran did not specifically file a claim
for an increased rating with respect to hearing loss.
However, subsequent to the initial adjudication of issue on
appeal, a letter dated in January 2007 was sent to the
Veteran in accordance with the duty to notify provisions of
VCAA. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1);
Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The
Veteran was notified of the evidence that was needed to
substantiate his claim; what information and evidence that VA
will seek to provide and what information and evidence the
Veteran was expected to provide, and that VA would assist him
in obtaining evidence, but that it was his responsibility to
provide VA with any evidence pertaining to his claims. See
Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004)
(Pelegrini II). The Veteran was also notified of the
criteria for establishing an effective date and disability
rating.
The notice requirements under 38 U.S.C.A. § 5103 underwent
significant changes during the pendency of the Veteran's
appeal. The U.S. Court of Appeals for the Federal Circuit
(Federal Circuit) recently held that, for increased rating
claims, notice provided to the Veteran under 38 U.S.C.A.
§ 5103 need not be "veteran specific," and that VA is not
required to notify the Veteran that he may submit evidence of
the effect of his worsening disability on his daily life, nor
is VA required to notify the Veteran of diagnostic codes that
his disability may be rated under. See Vazquez-Flores/Wilson
v. Shinseki, No. 2008-7150 (Fed. Cir., Sept. 4, 2009).
Therefore, the Board may proceed.
The Veteran's service treatment records, VA treatment
records, VA authorized examination reports, and lay
statements have been associated with the claims file. The
Board specifically notes that the Veteran was afforded a VA
examination with respect to his hearing loss in September
2003, January 2007, and January 2008. 38 C.F.R.
§ 3.159(c)(4). When VA undertakes to provide a VA
examination or obtain a VA opinion, it must ensure that the
examination or opinion is adequate. Barr v. Nicholson, 21
Vet. App. 303, 312 (2007).
As set forth in greater detail below, the Board finds that
the VA examinations obtained in this case are adequate as
they are collectively predicated on a review of the claims
folder and medical records contained therein; contain a
description of the history of the disability at issue;
document and consider the relevant medical facts and
principles; and record the relevant findings for rating the
Veteran's bilateral hearing loss. Accordingly, the Board
finds that VA's duty to assist with respect to obtaining a VA
examination or opinion with respect to the issue on appeal
has been met. 38 C.F.R. § 3.159(c) (4).
VA has provided the Veteran with opportunity to submit
evidence and arguments in support of his claim. The Veteran
and his representative have not made the Board aware of any
additional evidence that needs to be obtained prior to
appellate review. The record is complete and the case is
ready for review.
B. Law and Analysis
Disability evaluations are determined by evaluating the
extent to which a veteran's service-connected disability
adversely affects his ability to function under the ordinary
conditions of daily life, including employment, by comparing
his symptomatology with the criteria set forth in the
Schedule for Rating Disabilities. Separate diagnostic codes
identify various disabilities and the criteria for specific
ratings. If two evaluations are potentially applicable, the
higher evaluation will be assigned if the disability picture
more nearly approximates the criteria required for that
evaluation; otherwise, the lower rating will be assigned. 38
C.F.R. § 4.7. After careful consideration of the evidence,
any reasonable doubt remaining will be resolved in favor of
the veteran. 38 C.F.R. § 4.3. While a veteran's entire
history is reviewed when making a disability determination,
38 C.F.R. § 4.1, where service connection has already been
established, and increase in the disability rating is at
issue, it is the present level of the disability that is of
primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994).
However, when an appeal arises from the initially assigned
rating, consideration must be given as to whether staged
ratings should be assigned to reflect entitlement to a higher
rating at any point during the pendency of the claim.
Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged
ratings are appropriate in any increased-rating claim in
which distinct time periods with different ratable symptoms
can be identified. Hart v. Mansfield, 21 Vet. App. 505
(2007).
Pertinent regulations do not require that all cases show all
findings specified by the Rating Schedule, but that findings
sufficiently characteristic to identify the disease and the
resulting disability and above all, coordination of rating
with impairment of function will be expected in all cases.
38 C.F.R. § 4.21. Therefore, the Board has considered the
potential application of various other provisions of the
regulations governing VA benefits, irrespective of whether
the Veteran raised them, as well as the entire history of his
disability in reaching its decision. Schafrath v. Derwinski,
1 Vet. App. 589 (1991).
In evaluating service-connected hearing loss, disability
ratings are derived by a mechanical application of the rating
schedule to the numeric designations assigned after
audiometric evaluations are performed. Lendenmann v.
Principi, 3 Vet. App. 345, 349 (1992). Evaluations of
hearing loss range from noncompensable to 100 percent based
on organic impairment of hearing acuity, as measured by a
controlled speech discrimination test (Maryland CNC), and the
average hearing threshold, as measured by puretone
audiometric tests in the frequencies 1000, 2000, 3000 and
4000-Hertz. The rating schedule establishes 11 auditory
acuity Levels, designated from Level I for essentially normal
hearing acuity through Level XI for profound deafness. An
examination for hearing impairment for VA purposes must be
conducted by a State-licensed audiologist and must include a
controlled speech discrimination test (Maryland CNC) and
puretone audiometric test. Examinations will be conducted
without the use of hearing aids. See 38 C.F.R. § 4.85(a).
Under 38 C.F.R. § 4.85, Table VI (Numeric Designation of
Hearing Impairment Based on Puretone Threshold Average and
Speech Discrimination) is used to determine a Roman numeral
designation (I through XI) for hearing impairment, based upon
a combination of the percent of speech discrimination
(horizontal rows) and the puretone threshold average
(vertical columns). The Roman numeral designation is located
at the point where the percentage of speech discrimination
and puretone average intersect. 38 C.F.R. § 4.85(b). The
puretone threshold average is the sum of the puretone
thresholds at 1000, 2000, 3000 and 4000-Hertz, divided by
four. This average is used in all cases to determine the
Roman numeral designation for hearing impairment. 38 C.F.R.
§ 4.85(d). Table VII (Percentage Evaluations for Hearing
Impairment, also referred to as Diagnostic Code 6100) is used
to determine the percentage evaluation by combining the Roman
numeral designations for hearing impairment of each ear. The
horizontal row represents the ear having the poorer hearing
and the vertical column represents the ear having the better
hearing. The percentage evaluation is located at the point
where the rows and column intersect. 38 C.F.R. § 4.85(e).
As noted above, the Veteran is service-connected for hearing
loss in only one ear - the right ear. In such cases, the
disability is evaluated as a paired organ. Specifically,
where there is deafness compensable to a degree of 10 percent
or more in one ear as a result of service-connected
disability and deafness in the other ear as the result of
nonservice-connected disability that is not the result of the
Veteran's own willful misconduct, the rate of compensation
shall be paid as if the combination of the disabilities was
the result of service-connected disability. See 38 U.S.C.A.
§ 1160(a)(3) (West Supp. 2008); see also VAOPGCPREC 32-97.
The implementing regulation regarding hearing loss in one ear
provides that a Veteran must have a service-connected hearing
impairment of 10 percent or more, and a hearing impairment in
the nonservice-connected ear that meets the criteria at 38
C.F.R. § 3.385 before both ears may be considered in deriving
the level of disability. See 38 C.F.R. § 3.383(a)(3) (2008).
In determining if the service-connected ear has a hearing
impairment of 10 percent or more the nonservice-connected ear
must initially be given a value of Roman Numeral I. See 38
C.F.R. § 4.85(f). The service-connected ear must then either
have a numeric value of either X or XI, as determined by
either Table VI, or Table VIA, in order to considered as
compensable. See 38 C.F.R. § 4.85, Diagnostic Code 6100,
Table VII (combination of Level I and either Level X or Level
XI results in a 10 percent rating). As the following
discussion will show, the evidence of record demonstrates
that the Veteran has a compensable disability rating for his
service-connected right ear at all times during the pendency
of this appeal. Further, since the Veteran has a service-
connected hearing impairment of 10 percent or more in the
right ear, and a hearing impairment in the nonservice-
connected left ear that meets the criteria at 38 C.F.R. §
3.385, both ears may be considered in deriving the level of
disability in this case.
VA regulations also provide that in cases of exceptional
hearing loss, when the puretone threshold at each of the four
specified frequencies (1000, 2000, 3000 and 4000-Hertz) is 55
decibels or more, the rating specialist will determine the
Roman numeral designation for hearing impairment from either
Table VI or Table VIa, whichever results in the higher
numeral. Each ear will be evaluated separately. See 38
C.F.R. § 4.86 (a). The provisions of 38 C.F.R. § 4.86 (b)
further provide that, when the puretone threshold is 30
decibels or less at 1000-Hertz, and 70 decibels or more at
2000-Hertz, the rating specialist will determine the Roman
numeral designation for hearing impairment from either Table
VI or Table VIa, whichever results in the higher numeral.
That numeral will then be elevated to the next higher Roman
numeral. See 38 C.F.R. § 4.86(b). Each ear will be
evaluated separately.
During the Veteran's September 2003 VA examination, puretone
thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
N/A
N/A
N/A
N/A
N/A
LEFT
15
15
10
40
50
The examiner determined that the Veteran had no hearing on
his right side, therefore puretone thresholds and speech
audiometry scores were not available. Speech audiometry
revealed speech recognition ability of 100 percent in the
left ear. The average hearing loss in the left ear was
reported as 28.75 decibels [15 + 10 + 40 + 50 = 115, 115/4 =
28.75].
In a statement dated June 2006, the Veteran reported some of
the effects of his hearing loss. He stated that, at work, if
he was standing near a machine that emitted even a low level
of noise, he could hardly make out the intercom
announcements. He stated that at home, if there was noise
coming from his left side, he could not make out noises
coming from the television.
During the Veteran's January 2007 VA examination, puretone
thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
105+
105+
105+
105+
105+
LEFT
20
20
15
35
50
Speech audiometry revealed speech recognition ability of 88
percent in the left ear; the examiner was unable to test
speech recognition ability in the right ear. The average
hearing loss in the left ear was reported as 30 decibels [20
+ 15 + 35 + 50 = 120, 120/4 = 30]. The average hearing loss
in the right ear was reported as 105 decibels [105 + 105 +
105 + 105 = 420, 420/4 = 105].
During the Veteran's January 2008 VA examination, puretone
thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
105+
105+
105+
105+
105+
LEFT
20
20
15
40
55
Speech audiometry revealed speech recognition ability of 88
percent in the left ear and 0 percent in the right ear. The
average hearing loss in the left ear was reported as 32.5
decibels [20 + 15 + 40 + 55 = 130, 130/4 = 32.5]. The
average hearing loss in the right ear was reported as 105
decibels [105 + 105 + 105 + 105 = 420, 420/4 = 105]. This
examination reflects the most severe findings of hearing loss
during the period on appeal.
Based on the evidence of record, particularly the Veteran's
most recent VA examination, the Board finds that a rating in
excess of 10 percent is not warranted. Utilizing the
mechanical application of the rating schedule in accordance
with Table VI of the Schedule for Rating Disabilities,
puretone threshold averages ranging from 0 to 41 decibels
with a speech discrimination score ranging from 84 to 90
percent result in a numeric designation of II for hearing
impairment of the left ear. Considering the provisions of 38
C.F.R. § 4.86 [exceptional patterns of hearing impairment],
and utilizing Table VIa, puretone threshold averages of 105
and greater result in a numeric designation of XI for the
right ear. Applying these numeric designations to Table VII
of the Schedule for Rating Disabilities, the Veteran's
hearing loss results in the assignment of a 10 percent
disability rating.
The Veteran's contentions alone cannot establish entitlement
to a compensable evaluation for defective hearing because
disability ratings for hearing impairment are derived by a
mechanical application of the rating schedule. See
Lendenmann, supra, 3 Vet. App. at 349. Here, a mechanical
application of the schedule establishes a 10 percent
disability evaluation under Diagnostic Code 6100. The Board
thus finds that the Veteran's bilateral hearing loss was
properly assigned a 10 percent disability rating under
Diagnostic Code 6100; and concludes that the preponderance of
the evidence is against the Veteran's claim. Thus, the
Veteran's claim for an increased rating for bilateral hearing
loss is denied.
In making this decision, the Board acknowledges the Veteran's
statements in which he asserts his belief that he is entitled
to an increased evaluation due to the severity of his
disability and because of his increased hearing difficulties
in social and occupational interactions. While the Board
acknowledges that it is clear from the record that the
Veteran experiences hearing loss, the objective medical
evidence has not shown that the appellant's bilateral hearing
loss has increased to a level greater than that encompassed
by a 10 percent rating under the provisions of 38 C.F.R. §
4.85.
Lastly, in reaching this decision, the Board notes for the
record that it has considered the potential application of
various provisions of Title 38 of the Code of Federal
Regulations, whether or not they were raised by the Veteran,
as required by the holding of the Court in Schafrath v.
Derwinski, 1 Vet. App. 589, 593 (1991), including the
provisions of 38 C.F.R. § 3.321(b)(1). As for extraschedular
consideration, the threshold determination is whether the
disability picture presented in the record is adequately
contemplated by the rating schedule. Thun v. Peake, 22 Vet.
App. 111 (2008). In this regard, there must be a comparison
between the level of severity and symptomatology of the
claimant's service-connected disability with the established
criteria found in the rating schedule for that disability.
If the criteria reasonably describe the claimant's disability
level and symptomatology, then the claimant's disability
picture is contemplated by the rating schedule and the
assigned schedular evaluation is therefore adequate, and no
extraschedular referral is required. Id., see also
VAOPGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular
evaluation does not contemplate the claimant's level of
disability and symptomatology and is found inadequate, VA
must determine whether the claimant's exceptional disability
picture exhibits other related factors, such as those
provided by the extraschedular regulation (38 C.F.R. §
3.321(b)(1)) as "governing norms" (which include marked
interference with employment and frequent periods of
hospitalization).
In this case, the Board does not find that the symptoms of
the Veteran's service-connected disability present an
exceptional disability picture that renders the schedular
rating inadequate. There is no objective evidence of
frequent periods of hospitalization. With respect to
employment, the Board also notes that the record contains an
absence analysis of the Veteran's work attendance during
2002. This evidence indicates the Veteran missed
approximately 17 days of work due to sick leave or emergency
annual leave. Although this evidence demonstrates the
Veteran missed time at work, there is no indication that any
interference with employment beyond that which is already
contemplated in the rating schedule is due solely to the
Veteran's service-connected bilateral hearing loss. Cf.
Martinak v. Nicholson, supra. The Board finds that the
rating criteria to evaluate hearing loss reasonably describe
the claimant's disability level and symptomatology.
Therefore, the appellant's disability picture is contemplated
by the rating schedule and extraschedular referral is not
required. 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet.
App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995).
Therefore, based on a thorough review of the evidence of
record, the Board finds that the preponderance of the
evidence is against the Veteran's claim of entitlement to an
increased disability rating for bilateral hearing loss, for
the reasons discussed above. The doctrine of reasonable
doubt has been considered in this case. However, as a
preponderance of the evidence against the appellant's claim,
the doctrine is not applicable. See Gilbert v. Derwinski, 1
Vet. App. 49 (1991).
ORDER
A disability rating in excess of 10 percent for bilateral
hearing loss is denied.
____________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs